Duties of Police Include Positive Action to Promote Right to Life

Smith v Chief Constable of Sussex Police [2008] EWCA Civ 39 (5 February 2008) In this decision, the UK Court of Appeal held that a claim in negligence against the police for failing to protect life should have regard to the duties imposed and standards required by art 2 of the European Convention on Human Rights.


On 10 March 2003, Mr Smith was attacked with a claw-hammer by his former partner Mr Jeffrey and was seriously injured.  Mr Smith alleged that he had repeatedly told the local police that Mr Jeffrey was threatening to kill him, and that the police took no appropriate protective action.  Mr Jeffrey was convicted of causing grievous bodily harm.

Mr Smith was out of time for suing for breach of his convention rights pursuant to s 7 of the Human Rights Act 1998 and instead brought a claim in negligence in the Brighton County Court against the Sussex Police.  The key issues were whether the facts of the case disclosed a reasonable cause of action and whether the police arguably owed a duty of care to Mr Smith that required them to arrest Mr Jeffrey in order to protect Mr Smith.  The Judge at first instance ruled that they did not.  The Judge struck out the claim on the ground that there was no sufficient relationship of proximity between Mr Smith and the police, and his claim should not be entertained on public policy grounds.

Mr Smith appealed.



The Court of Appeal held that the case should not have been struck out as the claim was not doomed to failure and it was arguable that the police owed Mr Smith a duty of care.  Furthermore, the Court should have had regard to the duties imposed and the standards required by art 2 of the Convention (the derivative obligation upon states to take reasonable steps to protect human life).

Mr Smith demonstrated to the Court of Appeal that the police had failed in its positive obligation to protect his life under art 2.  The police should have been alerted by the evidence provided by Mr Smith, and arrested Mr Jeffrey promptly.  Instead, Mr Jeffrey was left at large and permitted to carry out the attack which he had been threatening to make.  This attack demonstrated that the police had done little or nothing to protect Mr Smith and accordingly his appeal was upheld and the action reinstated.

Lord Justice Pill, delivering the third judgment of the Court, added his view that there was a strong case for developing this common law action for negligence in the light of convention duties.  In his view, it was appropriate to absorb the rights which art 2 protected into an action of negligence and a claim in negligence should, on appropriate facts, have regard to the duties imposed and standards required by the right to life under art 2.  His Lordship was of the opinion that, in the circumstances, it was not appropriate to put a claim under art 2 and a claim in negligence in different compartments, each with its own limitation period.


Implications for the Victorian Charter

In the Victorian context this decision is significant for the interpretation and application of s 9 of the Victorian Charter, which enshrines the right to life.  By imposing a positive obligation upon the police to protect life, the case reinforces common law and arguably establishes that the police owe a duty of care to protect individuals from attack.  This case also demonstrates that the application of s 9 of the Charter can potentially strengthen a negligence claim.

The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2008/39.html.

Ashleigh Ellis and Jason Pobjoy, Human Rights Law Group, Mallesons Stephen Jaques